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Collins v O'Rourke QCATA 164
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Collins v O'Rourke & Anor  QCATA 164
ORIGINATING APPLICATION NO:
MCDO84 of 2018 (Brisbane)
13 December 2019
13 September 2019
Senior Member Aughterson
Member Dr J R Forbes
APPEAL – APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – leave to appeal – minor civil dispute – fencing dispute – Neighbourhood Disputes and Dividing Fences Act 2011 (Qld) – where retaining wall constructed by respondents without consent of applicant – where applicant seeks removal of the wall, construction of a fence and compensation – whether existing orders should stand – where order made for partial removal of wall – where order made for construction of 1.8 metre high fence on remaining portion of wall – where fencing in question is a pool barrier – where in consequence certain provisions of the Building Act 1975 (Qld) supervene – whether leave to appeal should be granted
Building Act 1975 (Qld), s 245X, s 245XB, s 245XD, s 245XQ, s 245XV
Neighbourhood Disputes and Dividing Fences Act 2011 (Qld), s 9, s 11, s 12, s 13, s 31, s 35, s 39
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 35, s 142
Amies v Lerve  QCATA 61
Cooper v O'Connor  QCATA 180
Fisher v Wenzel (No 1)  QCAT 261
Pierce v Moderate  QCAT 438
Priddle v Queensland Building and Construction Commission  QCAT 280
Terera & Anor v Clifford  QCA 181
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- The applicant and the respondents are next door neighbours in Clayfield, Brisbane. The applicant seeks leave to appeal a decision of the Tribunal made on 28 August 2018. The applicant for leave to appeal was also the applicant in the hearing at first instance.
- The casus belli arose when the respondents, without the applicant’s consent, dug a trench on or near the mutual boundary and erected a concrete block retaining wall.
- On 15 June 2018, Collins sought orders of the Tribunal for:
- (a)Compensation for damage to, or destruction of a dividing fence;
- (b)Removal of things attached to a dividing fence and restoration of same;
- (c)Costs, namely the filing fee;
- (d)Prevention of construction or demolition of a dividing fence without authorisation;
- (e)Removal of a dividing fence constructed without authorisation;
- (f)Costs of such removal to be paid by the respondents;
- (g)A dividing fence forming part of a pool barrier to comply with the pool safety standard; and
- (h)Prevention of fencing work for the latter fence without authorisation.
- On 28 August 2018 the Tribunal decided as follows:
- (a)No order is made in respect of the new block (retaining) wall of approximately 21 metres from the back boundary, known as `Stage One’;
- (b)Within one month of the date of this order the respondents shall remove the existing timber fence and install a 1.8 metre timber fence, or such other fence as is agreed in writing, on or as close as possible to the boundary line, on top of the Stage One new block wall fence at their expense;
- (c)Within one month of the date of this order the respondents shall remove the new block wall fence continuing forward from Stage One of approximately 17 metres, at the respondents’ expense (‘Stage two’);
- (d)In the event that the respondents fail to remove the Stage Two fencing, the applicant shall be at liberty to remove it or have it removed by an independent contractor and dispose of it at the respondents’ expense; and
- (e)Within 14 days of the date of this order, the respondents shall pay to the applicant the sum of $1,210, being $880 for filing and surveyor fees, and $330 for plants, building materials and labour.
Grounds of proposed appeal
- In essence, the grounds of appeal are (references to the orders are those set out at paragraph 4, above):
- (a)The Tribunal did not have jurisdiction to make the orders set out at (a) and (b), as there is no jurisdiction to make fencing orders in the absence of a notice to fence under Chapter 2 Part 4 Division 2 of the Neighbourhood Disputes and Dividing Fences Act 2011 (Qld) (`the Fences Act’): Grounds 1(a), 3.
- (b)Further in relation to Order (a), the incorporation of the retaining wall is beyond jurisdiction: Ground 2.
- (c)Order (b) does not comply with the height constraints for a dividing fence in s 13(1)(a)(i) of the Fences Act: Ground 1(b).
- (d)Orders (a) and (b) give rise to an error of law because the fence is a pool fence, so that, by s 9 of the Fences Act, Parts 3 to 6 of Chapter 2 of the Fences Act do not apply: Ground 4.
- (e)There is no jurisdiction to make the compensation order, at order (e), or there is no logical basis to apportion such damages: Ground 5.
- The applicant seeks to have orders substituted for those under review, namely:
- (a)That the respondents remove all fencing works, including concrete block fence, walls and footings on the common boundary within 21 days and that, in default, the applicant’s [servants or agents] may enter the property and complete the works specified in draft order (a) at the respondents’ expense; and
- (b)That the compensation issue be remitted to the primary Tribunal for reconsideration, after compliance with Order (a), above.
- By s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), leave to appeal is required from a decision in a proceeding for a minor civil dispute. In relation to the granting of leave, in Terera & Anor v Clifford it was stated that the issues to be considered are whether:
- (a)an appeal is necessary to correct a substantial injustice;
- (b)there is a reasonable argument that there is an error to be corrected; and
- (c)on the question of whether leave to appeal might be given, the court usually makes some preliminary assessment of the prospects of the proposed appeal.
- In the present case, for the reasons outlined below, in our view there is no reasonable argument that there is an error to be corrected and there is no reasonable prospect of success of the proposed appeal.
- In relation to the grounds at (a), above, the applicant contends that the Tribunal does not have jurisdiction to make fencing orders in the absence of a Notice to Fence, and in fact no such notice had been given. However, by ss 31 and 32 of the Fences Act, a notice to fence is required only were one owner desires the adjoining owner to contribute to the cost of fencing. That is not the position here. In the two cases cited by the applicant, it is clear that in each matter contribution was sought, albeit inexpertly.
- The jurisdiction under s 35 of the Fences Act may be exercised without a contribution notice. The only precondition is that there be a pending `application in relation to fencing work’. Relevant to the present matter, the same preamble appears in s 245XQ of the Building Act 1975 (Qld) (‘the Building Act’), which applies where, as here, the fencing work forms part of a pool barrier. ‘Stage one’ adjoins a pool, so that it attracts the relevant provisions of the Building Act.
- The ground at (b), above, rests on s 11(2)(a) of the Fences Act, which provides that a ‘fence’ is not a ‘retaining wall’. However, it is noted that the order at (a) above is in terms that ‘no order is made in respect of the new block (retaining) wall of approximately 21 metres from the back boundary, known as ‘Stage One’. To the extent that the retaining wall is affected by the orders made, it is noted that s 35(1)(f) of the Fences Act and s 245XQ(1)(f) of the Building Act provide that, for an application in relation to fencing work for a dividing fence, the Tribunal may decide and order ‘any other work to be carried out that is necessary to carry out the fencing work ordered including work for a retaining wall’.
- The ground at (c), above, rests on s 13(1)(a)(i) of the Fences Act, which provides that a dividing fence is a ‘sufficient dividing fence’ if the dividing fence is ‘between a minimum of 0.5m and a maximum of 1.8m in height’. The order referred to a 1.8m timber fence on top of the stage one block wall. The applicant objects to an order that would result in a dividing fence 2.8 metres high. She says that even if the Tribunal had jurisdiction to make the fencing order (which she denies) it would not be lawful to order a fence of that height.
- While s 13(1)(a) states that a dividing fence is ‘sufficient’ if it is between 0.5 and a maximum of 1.8 metres high, there are three categories of ‘sufficiency’ described in section 13, all disjoined by the word ‘or’. The 1.8m limit is not sacrosanct. The third alternative, at s 13(c) recognises that a fence is ‘sufficient’ if the parties agree or if QCAT ‘decides’ that that the fence is a ‘sufficient dividing fence’. Such a decision of QCAT is implicit in the order at (b), above.
- In relation to the grounds at (d), above, it is said that orders (a) and (b) (see , above) give rise to an error of law because, by s 9 of the Fences Act, Parts 3 to 6 of that Act do not apply in relation to a fence or part of a fence that is a barrier of a regulated pool. For the reasons given at -, above, this objection also is misconceived.
- In relation to the ground at (e), the applicant complains that the Tribunal’s award of compensation is in error because, according to s 9 of the Fences Act, s 35 of that Act does not apply to a fence that is a pool barrier. See, however, s 245XQ of the Building Act, which provides for the orders that may be made by the Tribunal where there is an application about fencing work for a dividing fence forming part of a pool barrier. The applicant also denies that there is any proper basis for an apportionment order:
[T]he causation of the damages has nothing to do with the actions of the Applicant and are entirely caused by the illegal actions of the Respondents in breach of the Tribunal orders and the Act. There is no logical basis to apportion such damages.
But no such order was made. All expenses for the fencing changes fall upon the respondents and the only monetary provision appears in the fifth order:
Within 14 days of the date of this order, the respondents shall pay to the applicant the sum of $1,210 (being $880 for filing fee and surveyor fee and $330 for plants, building materials and labour.
- As noted at , above, the applicant seeks an order that the respondents remove all fencing works, including the concrete block fence, walls and footings on the common boundary, on the basis that it is unauthorised fencing work. Substantively, the submission is that as both stages of the wall were unauthorised, and as it was ordered that the stage 2 wall be demolished, the demolition order should have extended to both stages. It appears that that the decision to leave Stage One in place was to provide a foundation for the 1.8 metre timber fence that the respondents were ordered to install. That decision offers a measure of economy to the parties.
- The applicant’s argument seems to proceed on the assumption, discussed at  above, that there was no jurisdiction to make the orders set out at (a) and (b) above. That argument has been rejected. Section 245XV of the Building Act allows the Tribunal to make orders, including for rectification, in relation to fencing work for a dividing fence forming part of a pool barrier which has been carried out without authorisation.
- We discern no appealable error in the decision at first instance and, as such, the proposed appeal has no reasonable prospect of success. The application for leave to appeal or appeal must be refused.
Leave to appeal is required from a decision in a proceeding for a minor civil dispute: Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
That is, `Stage Two’ as well as `Stage One’ of the concrete block wall.
 QCA 181.
The Fences Act, s 31.
Cooper v O'Connor  QCATA 180; Amies v Lerve  QCATA 61.
As to the meaning of the term ‘fencing work’, see the Fences Act, s 16.
See generally, the Building Act, Chapter 8, Part 2A.
As to the term ‘dividing fence’, see the Fences Act, s 12.
See also the Fences Act, s 36.
Further, where a fence serves as a pool barrier, provisions of the Fences Act are modified by the Building Act, s 245X(2)(a). The Building Act provides that such a fence must comply with pool safety standards as well as being a sufficient dividing fence in terms of the Fences Act. See the Building Act, ss 245XB(3)(a) and 245XD(3)(a). See also Pierce v Moderate  QCAT 438, . See also Priddle v Queensland Building and Construction Commission  QCAT 280, .
Application for leave to appeal filed 27 September 2018, paragraph 5.
That is, ‘Stage Two’ as well as ‘Stage One’ of the concrete block wall.
- Published Case Name:
Collins v O'Rourke & Anor
- Shortened Case Name:
Collins v O'Rourke
 QCATA 164
Senior Member Aughterson, Member J R Forbes
13 Dec 2019